I. INTRODUCTION23.1 A. Scope of ChapterLike a motion to strike or a motion for judgment on the pleadings, a demurrer attacks mattersappearing on the face of pleadings filed by another party. This chapter covers the proceduresfor preparing and opposing demurrers filed in civil actions in California state courts. Itdiscusses description and use (see 23.323.15), and demurrers to complaints (see 23.1923.39), to cross-complaints (see 23.4023.42), and to answers (see 23.4423.49). It alsodiscusses responsive procedures (see 23.5023.51), reply papers (see 23.52), hearing andcourt ruling (see 23.5323.59), and posthearing procedures (see 23.5923.71). For adiagnostic checklist and forms, see (23.7223.79).On other responsive pleadings, see chaps 24 (motions to strike), 24A (Anti-SLAPP motions)and 25 (answers).NOTE: As used in this chapter, the words plaintiff, defendant, and complaint includecross-complainant, cross-defendant, and cross-complaint.23.2 B. Law Governing DemurrersThe controlling statutory authority for demurrers is found in CCP 430.10430.80. Ademurrer is generally treated like a motion. California Rules of Court 3.1103(c) provides thatall law and motion rules (Cal Rules of Ct 3.11003.1312) apply to demurrers unless the contextor subject matter requires otherwise. In addition, Cal Rules of Ct 3.1320 provides severalspecial requirements that apply only to demurrers. The Judicial Council has preempted localrules on demurrers, unless such rules are required or permitted by statute or rule. Cal Rules ofCt 3.20(a). See 11.2.NOTE: Local rules implementing the Trial Court Delay Reduction Act (Govt C 6860068620) are among the rules otherwise permitted by rule and statute. Cal Rules of Ct 3.20(b).II. DEMURRERS DESCRIBED23.3 A. Use of DemurrersA demurrer can be used at the pleading stage of litigation to challenge the legal sufficiency ofallegations in an opponents pleadings. See CCP 430.10430.80, 589, 591; Smeltzley vNicholson Mfg. Co. (1977) 18 C3d 932, 939. See Donabedian v Mercury Ins. Co. (2004) 116CA4th 968, 994. Pleadings include complaints, cross-complaints, and answers. CCP 422.10(demurrers themselves are also pleadings). Most demurrers are filed against complaints (orcross-complaints), but demurrers may also be used to attack answers. CCP 430.20. See23.4423.49.A demurrer tests issues of law, not fact. CCP 589(a). A ground for objecting to an opponentspleading can be raised by demurrer only if it (CCP 430.30): Appears on the face of the pleading; or Is based on a matter of which the court is required to or may take judicial notice.See City of Atascadero v Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 CA4th 445,459; James v Superior Court (1968) 261 CA2d 415.

The grounds for demurring to a complaint or cross-complaint are the same as the grounds forobjecting in an answer. See CCP 430.10430.20. Unlike a demurrer, an answer is appropriatewhen the ground does not appear on the face of the pleading. CCP 430.30(a)(b). A party maydemur and answer at the same time (CCP 430.30(c)), or demur and move to strike at the sametime (see CCP 435(c)).On demurrer, it is not the courts role to decide that the complaint is false in whole or in part;rather, a demurrer admits the truth of all material facts properly pleaded. Blank v Kirwan (1985)39 C3d 311, 318; William v Southern Cal. Gas Co. (2009) 176 CA4th 591, 600.PRACTICE TIP: Theoretically, a demurrer can resolve a meritless action, but this is rare.When granting a demurrer, courts generally grant leave to amend the defective cause of actionor defense. Although a demurrer helps to clarify the causes of action or defenses and to narrowthe theories that the opposing party will rely on at trial, it has the disadvantage of alerting theopposing party at an early stage in the case to the weaknesses of the pleadings. For furtherdiscussion of tactics to consider before filing a demurrer, see 23.6.If a defendant has not previously made an appearance, filing a demurrer is a general appearancein an action. CCP 1014.23.4 B. General and Special Demurrers DistinguishedIn general, the Code of Civil Procedure makes no distinction between general and specialdemurrers. See CCP 430.10430.90. However, the California Rules of Court distinguish thetwo (see Cal Rules of Ct 3.1320(f)); special demurrers are not allowed in limited civil cases(CCP 92(c)), and case law is replete with references to general and special demurrers. See5 Witkin, California Procedure, Pleading 951953 (5th ed 2008).The distinction rests on the particular ground for the demurrer. A general demurrer refers to: A complaint or cross-complaint on the ground that the pleading fails to state facts

sufficient to constitute a cause of action (CCP 430.10(e)); or

An answer on the ground that the pleading fails to state facts sufficient to constitute adefense (CCP 430.20(a)).A demurrer on any of the remaining grounds in CCP 430.20 or 430.10 (e.g., uncertainty, lackof legal capacity to sue) is considered a special demurrer. For discussion of the specificgrounds for demurrer, see 23.2323.37.Failure to demur or answer constitutes a waiver of the grounds for a special demurrer, but thegrounds for a general demurrer may be raised at any time during litigation, even though thetime to demur or answer has passed. On alternative procedures, see 23.723.15 (motion forjudgment on the pleadings or objection to evidence at trial based on same grounds as generaldemurrer).23.5 C. Availability of DemurrersDemurrers can be used in both limited and unlimited civil actions in California trial courts. SeeCCP 421422.20. However, a special demurrer is not allowed in a limited civil case. CCP92(c). On special demurrers, see 23.4. A demurrer can state objections to: A complaint or cross-complaint (CCP 430.10), including a complaint in intervention

(CCP 387) and a complaint for unlawful detainer (CCP 1170).

An amended complaint or a cross-complaint. See CCP 586. An answer (CCP 430.20) or an amended answer (CCP 471.5). A peremptory writ or an application for a writ of review (CCP 1069.1, 1089, 1105,1109; Cal Rules of Ct 8.487(b)(1)). See California Civil Writ Practice 8.40-8.44 (4thed Cal CEB).Demurrers are not used in: Small claims proceedings; Federal court civil actions; or Proceedings under the Family Code (see Cal Rules of Ct 5.74(b)). In family law cases,some of the objections raised in other civil actions by demurrer can be raised by amotion to quash under family law rules. See Cal Rules of Ct 5.63, 5.401.NOTE: In federal court, a defendant may challenge the legal sufficiency of pleadings by amotion to dismiss for failure to state a claim on which relief can be granted under Fed R Civ P12(b)(6) (sometimes called the federal demurrer).A defendant corporation in a shareholder derivative suit may only demur to the standing of aplaintiff. Patrick v Alacer Corp. (2008) 167 CA4th 995, 1008.23.6 D. Tactical ConsiderationsIn deciding whether to demur to a complaint, defense counsel should consider not only whethera demurrable defect appears on the face of the complaint, but also whether demurring is likelyto produce a practical benefit for the defendant more effectively than will alternativeprocedures. See 23.723.15.A demurrer is a valuable procedure for obtaining an early hearing on legal issues such as theplaintiffs right to proceed with the action and the validity or sufficiency of the stated causes ofaction, theories, and allegations. A successful demurrer can narrow the bases on which theplaintiff may proceed and have a salutary effect on settlement negotiations. It can also resolvethe entire action before the defense needs to frame an answer and incur further expense. Afterthe court sustains a demurrer, the plaintiff will need to restate and add allegations that maymake the amended complaint easier to answer or suggest additional affirmative defenses to thedefendant.Even when a complaint is technically demurrable, however, there are reasons to refrain fromdemurring. The court will usually give the plaintiff an opportunity to amend a defectivecomplaint. See 23.55. The effort and expense of preparing the moving papers and attendingthe hearing may thus outweigh the benefits gained even if the demurrer is sustained. Often,defense counsel can state objections to the complaint and challenge the validity of the actionmore expeditiously by an answer or another procedure. See 23.8.Finally, filing a demurrer may compel the plaintiffs attorney, perhaps for the first time, toresearch and thoroughly analyze the bases of the action, permitting the plaintiff to cure defectsearly and focus attention and energy on the tenable aspects of the action.JUDGES PERSPECTIVE: It is not good practice to demur solely to delay progress of theaction, to inconvenience the plaintiffs counsel, or to build a fee. Judges lose patience with

attorneys whose demurrers do not seem reasonably calculated to narrow issues or produceuseful clarification of the pleadings, and it wastes time to file a demurrer for an amendment thatthe plaintiff would have made if asked.23.7 E. Alternatives to DemurrerSeveral procedures will achieve the same objectives as demurrers. See 23.823.15.23.8 1. AnswerAn answer, in addition to denials and affirmative defenses, can state grounds for objections tothe complaint and can state them whether or not they appear on the face of the complaint.Unlike demurring, filing an answer does not itself obtain a ruling on the objections. See chap25.23.9 2. Motion to StrikeA motion to strike (CCP 436), whether or not filed with a demurrer, addresses defects notreachable by demurrer. This motion, made within the time to answer, can (1) eliminate sham,irrelevant, or redundant matters from a pleading; (2) raise objections that do not appear on theface of the pleading if the motion attacks matters not filed in conformity with law, rule, or courtorder; and (3) attack parts of a cause of action, count, or defense. See chap 24. See also CaliberBodyworks, Inc. v Superior Court (2005) 134 CA4th 365, 384 (demurrer inappropriate tochallenge part of cause of action or particular type of damage or remedy).23.10 3. Anti-SLAPP MotionThe California anti-SLAPP statute authorizes a special motion to strike a strategic lawsuitagainst public participation or SLAPP. See CCP 425.16(a), (b)(1). Generally, a SLAPP is alawsuit that is meritless and filed primarily to chill a defendants exercise of First Amendmentrights. Digerati Holdings, LLC v Young Money Entertainment, LLC (2011) 194 CA4th 873,882. An anti-SLAPP motion is available when one of the causes of action in a case is based onan act of a person in furtherance of the persons constitutional right of petition or free speech inconnection with a public issue. CCP 425.16(b)(1). On Anti-SLAPP motions, see chap 24A.23.11 4. Motion for Judgment on PleadingsThe grounds for a motion for judgment on the pleadings are the same as for a general demurrer.Unlike a demurrer, this motion can be made at any time on the ground that all or part of thepleading fails to state facts sufficient to constitute a cause of action or defense. Because there isno time requirement, the motion is often made after an answer has been filed. On motions forjudgment on the pleadings, see chap 27.23.12 5. Motion for Summary Judgment or Summary AdjudicationA summary judgment can terminate a lawsuit, and a summary adjudication can eliminatecauses of action or claims. These motions test evidentiary defects in the plaintiffs case that donot appear on the face of the pleadings and cannot be raised by demurrer. Thus, affidavits anddeclarations are filed in support of a motion for summary judgment or summary adjudication. Amotion under CCP 437c may not be made until 60 days after the general appearance in theaction of the party against whom the motion is directed. CCP 437c(a). These motions areusually not made until after some discovery has been completed. See chap 36.

23.13 6. Motion to Dismiss

Although no statutory authority exists for a motion to dismiss in state courts, defendants havesometimes been permitted to use a paper called a motion to dismiss after the time has passedto demur and to state the objection that the complaint fails to state facts sufficient to constitutea cause of action. See Timberlake v Schwank (1967) 248 CA2d 708, 709. In these instances, themotion to dismiss operates as a motion for judgment on the pleadings or as a motion forsummary judgment. See generally 5 Witkin, California Procedure, Pleading 10041006 (5thed 2008).23.14 7. DiscoveryUncertainty about the factual bases of a partys claims or defenses should be dispelled byinterrogatories, depositions, and other discovery methods. See Dahlquist v State (1966) 243CA2d 208, 212. See generally California Civil Discovery Practice (4th ed Cal CEB).23.15 8. Objection to EvidenceAt trial, a party can object to evidence offered by the opponent on the ground that the evidenceis irrelevant because the facts stated in the pleadings are not sufficient to constitute a cause ofaction or defense, and thus there is no issue on which to receive the evidence. The objection toevidence may then be treated as a general demurrer or as a motion for judgment on thepleadings. Trial judges faced with an objection that could have been raised by demurrer ormotion for judgment on the pleadings at an early stage of the litigation, however, are liberal inpermitting the parties to amend the pleadings to permit the proof. See 5 Witkin, CaliforniaProcedure, Pleading 1002 (5th ed 2008).III. DEMURRER TO COMPLAINTA. Timing for Demurrer23.16 1. When to File DemurrerA demurrer to a complaint must be filed within 30 days after service of the complaint. CCP430.40(a). It may be possible to obtain an extension of time either by stipulation or by meansof an ex parte application to a judge of the court in which the action is pending. CCP 1054;Cal Rules of Ct 2.20.WARNING: Counsels ability to stipulate with other counsel to an extension of time to demuror answer may be significantly curtailed by local rules implementing the Trial Court DelayReduction Act (Govt C 6860068620). See chap 40.The trial court has discretion to consider an untimely demurrer. Jackson v Doe (2011) 192CA4th 742, 749; McAllister v County of Monterey (2007) 147 CA4th 253, 281.See 22.96 for discussion of the time to respond after remand from federal court.23.17 2. Avoiding DefaultFiling a timely demurrer (i.e., within the time specified in a summons or such further time asallowed) prevents the plaintiff from taking judgment by default. CCP 585. The court can granta plaintiffs motion to strike a late-filed demurrer (see chap 24) and, if no answer is then on file,grant plaintiff judgment by default. Buck v Morrossis (1952) 114 CA2d 461, 464.

Filing a demurrer may not be sufficient to avoid entry of default if the demurrer is noteventually calendared for hearing. In Barragan v Banco BCH (1986) 188 CA3d 283, thedefendant demurred on the ground of a pending action involving substantially the same causesof action and issues. Before the court ruled on the demurrer, the parties removed it from thecalendar, and the plaintiff agreed to forgo the second lawsuit until completion of the first. Morethan a year after entry of judgment in the first action, plaintiffs repeatedly requested thedefendant to recalendar its demurrer; the defendant refused to do so, and plaintiffs obtained anentry of default. The court of appeal found that the trial court had properly refused to set asidethe default, that the defendant had abandoned its demurrer by not recalendaring it, and that thedemurrer was moot because there was no longer another action pending. 188 CA3d at 299.23.18 3. Consider Filing Answer SimultaneouslyA demurrer is usually filed and ruled on before the answer is filed. Then, if the demurrer issustained and the complaint amended, the answer need respond only to the allegations in theamended complaint. A demurrer to a cause of action may be filed without answering othercauses of action. Cal Rules of Ct 3.1320(b).If the demurrer is overruled, the defendant has 10 days after service of notice of the decision inwhich to file an answer, unless the court specifies more or less time or the parties waive notice(CCP 472a472b; Cal Rules of Ct 3.1320(g)). Defendants may ask for, and sometimes aregranted, additional time to file an answer.Alternatively, a defendant can file a demurrer and an answer at the same time. CCP430.30(c), 472a. Thus, a defendant can demur to one or more causes of action andsimultaneously answer others. See 5 Witkin, California Procedure, Pleading 949 (5th ed2008).23.19 1. Multiple Party VariationsA joint demurrer filed by two or more defendants may be overruled if the complaint is good asto any one defendant. Myers v County of Orange (1970) 6 CA3d 626, 630. But see MajesticRealty Co. v Pacific Lighting Corp. (1974) 37 CA3d 641 (rule limited to special demurrers).See generally 5 Witkin, California Procedure, Pleading 961 (5th ed 2008).A demurrer filed on behalf of fewer than all defendants, even if some of them were sued byfictitious names, should clearly indicate the names of the demurring defendant or defendants.The caption of the demurrer must state immediately below the case number the name of thedemurring party and the name of the party whose pleading is the subject of the demurrer. CalRules of Ct 3.1320(e).Counsel who represents more than one defendant should consider whether all should join in asingle demurrer or separately demur. See Fox v JAMDAT Mobile, Inc. (2010) 185 CA4th 1068,1078 (as to cause of action naming two or more defendants, complaints sufficiency against onedefendant does not immunize plaintiff against properly imposed demurrer by another defendantwho separately demurs). Even counsel who believes that the grounds for demurring are equallyvalid for all defendants may wish to use an introductory line indicating that the grounds areasserted separately for each. For example:Defendants __[name]__, __[name]__, and __[name]__ each demur individually, and not jointly

with any other party, to each cause of action on the following grounds: __[State each ground inseparate, numbered paragraphs]__.Alternatively, the effect of separate demurrers can also be achieved by dividing a single paperinto parts, using a separate introductory line to introduce the grounds stated for each demurringdefendant.Care should be used when demurring to a complaint filed by two or more plaintiffs, particularlyif a ground for demurring may be good against only one plaintiff. Separate introductory linesmay be used to distinguish grounds asserted against one plaintiff from grounds asserted againstanother. For example:Defendant, __[name]__, demurs to each cause of action alleged by __[name]__ in thecomplaint on the following grounds: __[State each ground in separate, numberedparagraphs]__.23.20 2. Stating Grounds SeparatelyEach ground for objecting to a complaint that is to be raised by a demurrer must be specifieddistinctly; otherwise, the demurrer may be disregarded. CCP 430.60. Each ground must be ina separate paragraph and state whether it applies to the entire complaint, cross-complaint, oranswer, or only to specified causes of action or defenses. Cal Rules of Ct 3.1320(a).If two or more grounds for an objection are stated conjunctively in a demurrer, the demurrermay be overruled unless all the grounds exist. Kraner v Halsey (1889) 82 C 209, 212; Butler vWyman (1933) 128 CA 736, 740. Thus, using the introductory line, Defendant demurs on eachof the following grounds, is preferable to Defendant demurs on all the following grounds orDefendant demurs on the grounds of X and Y.23.21 3. Demurring to All or Part of ComplaintA demurrer may be taken to the whole complaint or to any of its causes of action. CCP430.50. However, it is risky to assert a ground for demurrer against the whole complaint if thecomplaint contains several causes of action because a demurrer that attacks an entire pleadingmay be overruled if one of the causes of action is not vulnerable to the objection. Lord vGarland (1946) 27 C2d 840, 850; Skipper v Gilbert J. Martin Constr. Co. (1957) 156 CA2d 82,86. See Warren v Atchison, Topeka & Santa Fe Ry. (1971) 19 CA3d 24, 29.If the plaintiff has stated each cause of action separately in the complaint, the defendant mayuse headings in the demurrer to show which objections apply to each cause of action. Forexample:Defendant, ___[name]___, demurs to each cause of action in the complaint as follows:OBJECTIONS TO FIRST CAUSE OF ACTION: ___[State each objection in separate,numbered paragraphs]___.OBJECTIONS TO SECOND CAUSE OF ACTION: ___[State each objection in separate,numbered paragraphs]___.Alternatively, the form of demurrer may be as follows:1. The First Cause of Action does not state facts sufficient to state a cause of action. CCP

430.10(e).2. The First Cause of Action is uncertain in that in Paragraph 1 plaintiff is identified as acorporation and in Paragraph 2 as a partnership. CCP 430.10(f).3. The Second Cause of Action does not state facts sufficient to state a cause of action. CCP430.10(e).For sample form of demurrer to complaint, see 23.76.23.22 4. Requesting Judicial NoticeIf any ground of objection stated in the demurrer is based on a matter of which the court maytake judicial notice under Evid C 452453, counsel should identify the matter in thedemurrer or in the accompanying memorandum, request judicial notice, and provide the courtand each party with a copy of the material. If requesting judicial notice of part of a file in thecourt in which the action is being heard, the party must specify in writing the part of the file tobe judicially noticed and arrange with the court clerk to have the file in the courtroom at thehearing. CCP 430.70; Cal Rules of Ct 3.1306(c).A request for judicial notice must be made in a separate document listing the specific items theparty wishes to have judicially noticed and must comply with Cal Rules of Ct 3.1306(c). CalRules of Ct 3.1113(l). For further discussion and form, see 12.81, 12.172. Counsel shouldconsult local rules for special requirements for requesting judicial notice.NOTE: A court may take judicial notice of documents pertinent to issues raised by a demurrer,but whether the court accepts the accuracy of the contents of the judicially noticed documentsdepends on the circumstances. C.R. v Tenet Healthcare Corp. (2009) 169 CA4th 1094, 1103.There are basically three approaches: (1) the court will not consider the truth of a documentscontents unless it is a judgment, statement of decision, or order; (2) the court may accept thetruth of statements made by a party, but not by a third party or an opponent; and (3) the courtwill accept the contents of the document only when there is not and cannot be a factual disputeabout what is sought to be judicially noticed; generally, the truthfulness and interpretation of adocuments contents are disputable. C.R. v Tenet Healthcare Corp., supra. See also William vSouthern Cal. Gas Co. (2009) 176 CA4th 591 (although on demurrer court could take judicialnotice of discovery responses, it erred in concluding from responses that complaint allegationswere false).23.23 C. Grounds For DemurrerUnder CCP 430.10, the grounds for demurrer to a complaint or cross-complaint are: The court has no jurisdiction of the subject matter of the cause of action alleged in thepleading. The pleading does not state facts sufficient to constitute a cause of action. The person who filed the pleading has no legal capacity to sue. Another action is pending between the same parties on the same cause of action. There is a defect or misjoinder of parties. The pleading is uncertain (uncertain includes ambiguous and unintelligible). In an action arising from a contract, it cannot be ascertained from the pleading whether

the contract is written, oral, or implied by conduct.

No certificate of merit was filed as required by CCP 411.35 (actions for damagesarising from professional negligence of an architect, a professional engineer, or a landsurveyor) (see 23.37).23.24 1. Matters on Which Grounds BasedA demurrer searches for defects in the allegations of the pleading. The prayer for relief is notsubject to demurrer. Ramsden v Western Union (1977) 71 CA3d 873, 883. Generally, the courtmay not consider facts and evidentiary matters extrinsic to the pleading. Kerivan v Title Ins. &Trust Co. (1983) 147 CA3d 225, 229; Able v Van Der Zee (1967) 256 CA2d 728, 734. In raresituations, however, courts have permitted the demurring party to allege facts in a demurrer orintroduce evidence to support the demurrer in order to show that grounds for a demurrer exist.See, e.g., Joslin v H.A.S. Ins. Brokerage (1986) 184 CA3d 369, 375. See also George vAutomobile Club of S. Cal. (2011) 201 CA4th 1112, 1122 (court must conditionally considerparol evidence alleged in complaint to determine if it would be relevant to prove meaning towhich language of contract is reasonably susceptible). For further discussion, see 5 Witkin,California Procedure, Pleading 948 (5th ed 2008).The face of the defective pleading may be read as if it included matters of which the court maytake judicial notice. CCP 430.70; Bohrer v County of San Diego (1980) 104 CA3d 155, 164.Thus, whether or not a party formally requests judicial notice, the court can examine recitals inexhibits and admissions in previous pleadings in the same case in ruling on a demurrer. SeeBoschma v Home Loan Ctr., Inc. (2011) 198 CA4th 230, 235 (contents of exhibits accepted astrue; allegations as to exhibits legal effect treated as surplusage); Frantz v Blackwell (1987)189 CA3d 91, 94 (recitals of exhibits attached to complaint or superseded complaint); Able vVan Der Zee, supra (court properly considered requests for admissions in sustaining demurrer).However, on a general demurrer, it is not permissible to draw inferences from prior discoveryresponses to conclude that a complaint is false in part or in whole. Williams v Southern Cal.Gas Co. (2009) 176 CA4th 591, 600 (trial court erred in sustaining demurrer on ground thatdiscovery responses were inconsistent with second amended complaint).23.25 2. Grounds That Are Not WaivedEach ground for objection to a complaint listed in CCP 430.10, except no jurisdiction (CCP430.10(a)), and the ground in CCP 430.10(e) (pleading does not state facts sufficient toconstitute a cause of action) is waived unless raised by a timely demurrer or answer. CCP430.80; see Collins v Rocha (1972) 7 C3d 232, 239. These two grounds may be raised at anytime during litigation, even when the time to demur or answer has expired.PRACTICE TIP: If the time to demur has passed, counsel should consider moving forjudgment on the pleadings. See discussion of alternative procedures in 23.723.15.23.26 D. Stating Specific Grounds; ExamplesIf each ground for an objection to a complaint that is to be raised by a demurrer is not specifieddistinctly, the demurrer may be disregarded. CCP 430.60. See 23.20. The demurrer shouldstate the grounds with argument in support of each ground set out in the supportingmemorandum. See Gardner v Samuels (1897) 116 C 84, 88.

The following sections, each beginning with an example, discuss the permissible grounds fordemurring to a complaint. Grounds applicable to a particular complaint may be inserted asnumbered paragraphs in the demurrer. See form of demurrer in 23.76.23.27 1. Failure to State Facts Sufficient to Constitute Cause of ActionThe __[e.g., complaint/first cause of action]__ does not state facts sufficient to constitute acause of action against __[name of demurring defendant]__.A general demurrer may be stated in the words of CCP 430.10(e): The pleading does notstate facts sufficient to constitute a cause of action. See Burke v Maguire (1908) 154 C 456,468. This ground can be effective when: The plaintiff has attempted to state a novel cause of action; The defendant knows that the plaintiff cannot truthfully allege an essential missing factor defense; or The missing fact, if alleged, would itself provide a basis for objecting to the complaint orcause of action.An additional clause should be added if the demurrer is made on the basis of a statute oflimitations (see 23.28) or on some other specific basis (see 23.26). Otherwise, additionalstatements of the defects of the complaint should be reserved for the supporting memorandum.The objection that the complaint does not state facts sufficient to constitute a cause of action isnot waived by failure to demur. See 23.25. If it later develops (e.g., during discovery) thatessential elements are missing from the plaintiffs case, that objection can be raised at any timeduring the proceeding by other procedural means or on appeal. See Whelan v Wolford (1958)164 CA2d 689, 693.However, the danger in failing to raise the objection by demurrer is that, at later stages of thelitigation, the court may be more liberal in finding that the complaint was adequate or inpermitting an amendment to conform to proof. Note that an appeal from a judgment for theplaintiff must be based on failure to prove an essential fact and not on failure to plead it. SeeAdes v Brush (1944) 66 CA2d 436, 444.PRACTICE TIP: Although a general demurrer can be taken to a complaint that statesconclusions of law or evidentiary facts (rather than ultimate facts as required), a defendant whobelieves that the plaintiff will be able to recast allegations properly may decide not to demur.Courts will rarely grant a general demurrer without leave to amend, and a demurrer to defectsthat the plaintiff can cure may only alert the plaintiff to those defects early in the case.23.28 a. Barred by Statute of LimitationsThe __[e.g., complaint/first cause of action]__ does not state facts sufficient to constitute acause of action against __[name of demurring defendant]__ in that the action is barred by__[e.g., Code of Civil Procedure 335.1]__.Although it is sufficient to state in the demurrer that cause of action is barred by a statute oflimitations without specifying the applicable code section (see Williams v ILWU (1959) 172CA2d 84, 87), it is better practice to cite the code section that bars the action. The parts of thecomplaint that show the action to be barred can be specified in the supporting memorandum.

To successfully demur based on the statute of limitations, a defendant must establish that theentire cause of action is untimely; the same rule applies when a complaint alleges, in multiplecauses of action, that a single primary right was breached in multiple ways. See Pointe SanDiego Residential Community, L.P. v Procopio, Cory, Hargreaves & Savitch, LLP (2011) 195CA4th 265, 274 (primary right to be free of negligence in single litigation; complaint separatedalleged acts of malpractice in that litigation in distinct causes of action).On Californias equitable tolling doctrine, which may be applied to extend the statutory period,see Elkins v Derby (1974) 12 C3d 410; Aguilera v Heiman (2009) 174 CA4th 590; Tarkingtonv California Unemployment Ins. Appeals Bd. (2009) 172 CA4th 1494, 1503.For statutes of limitations for specific causes of action, see California Business Litigation (CalCEB); California Tort Damages (2d ed Cal CEB); California Tort Guide (3d ed Cal CEB).23.29 b. Defenses Appearing on Face of ComplaintOccasionally, facts will be alleged in the complaint that create a defense to one or more of itscauses of action. If the establishment of a defense does not require factual allegations by thedefendant (which would have to be made in an answer), the defendant can obtain an earlyhearing on the validity of the defenses by a general demurrer. Halvorsen v Aramark Unif.Servs. (1998) 65 CA4th 1383, 1391. Defenses that have been raised by a general demurrerinclude: Statute of limitations (Carter v Prime Healthcare Paradise Valley LLC (2011) 198

For additional examples, see 5 Witkin, California Procedure, Pleading 963967 (5th ed2008).23.30 2. No Jurisdiction of Subject MatterThe Court has no jurisdiction of the subject of __[the/any]__ cause of action alleged in the__[complaint/first cause of action]__.This objection is not waived by failure to raise it in a demurrer or answer (CCP 430.80), and itmay be made at any time during the litigation, or by collateral attack. Raising the objection bydemurrer is a way to test jurisdiction at the outset, possibly saving the defendant further effortand expense.Because the superior court is a court of general jurisdiction, it is presumed to have jurisdiction;a complaint need not affirmatively allege facts establishing jurisdiction. See Cheney vTrauzettel (1937) 9 C2d 158. A demurrer on the ground of no jurisdiction in that court mustbe based on allegations in the complaint showing that jurisdiction lies in a different court or in

no court; thus, a demurrer based on the courts lack of jurisdiction is proper if allegations of thecomplaint show that jurisdiction lies, e.g., in a federal court (see Olcovich v Grand Trunk Ry.(1912) 20 CA 349), the court of another state (see Getty v Getty (1933) 130 CA 519), or theWorkers Compensation Appeals Board (see Buttner v American Bell Tel. Co. (1940) 41 CA2d581).A demurrer for lack of jurisdiction may be used to gain a hearing on questions such as: The constitutionality of the statute or ordinance under which the plaintiff proceeds (see

Harden v Superior Court (1955) 44 C2d 630, 634);

The propriety of a cross-complaint (see Tide Water Assoc. Oil Co. v Superior Court(1955) 43 C2d 815, 820); The statutory immunity of a public entity to the plaintiffs alleged cause of action (seeCounty of Santa Barbara v Superior Court (1971) 15 CA3d 751, 754); or The validity of causes of action when plaintiff has not pled compliance withadministrative prerequisites to filing suit (see Caliber Bodyworks, Inc. v Superior Court(2005) 134 CA4th 365, 371).If a demurrer for lack of subject matter jurisdiction is sustained, and if another California courthas jurisdiction, the plaintiff or the defendant may move to transfer the action to the propercourt. See CCP 396399. It is unclear whether sustaining the demurrer or a motion totransfer extends the time to answer the complaint as to parties who have appeared in the actionby way of the demurrer or otherwise. A defendant in this situation may wish to file an answerwith the demurrer or obtain an extension of time to respond to the complaint.NOTE: The objection that the court does not have jurisdiction of the person of the defendantis raised by a motion to quash service of summons (see chap 19), not by demurrer.23.31 3. Lack of Legal Capacity to SuePlaintiff, __[name]__, does not have the legal capacity to sue in that __[e.g., he is a minor andno guardian has been appointed to represent him]__.This objection may be used when the plaintiff brings the action in some representative capacity,but the complaint fails to show that the plaintiff actually possesses that capacity to sue. SeeKlopstock v Superior Court (1941) 17 C2d 13, 17; Kreling v Kreling (1897) 118 C 413, 419;Hagan v Fairfield (1961) 194 CA2d 240, 245.Demurring on this ground is also proper against a complaint that shows on its face that theplaintiff is a nonentity such as an estate. See chap 9. Although a partnership or unincorporatedassociation has the capacity to sue by the name it has assumed (CCP 369.5(a)), thecomplaints failure to allege compliance with the Bus & P C 17918 filing requirement can beraised by demurrer on this ground.NOTE: Lack of capacity to sue should not be confused with lack of standing to sue. SeeCenter for Self-Improvement & Community Dev. v Lennar Corp. (2009) 173 CA4th 1543, 1552(corporate incapacity for failure to comply with Rev & T C 23305 is a legal disability, not ajurisdictional defect). Lack of capacity to sue is a ground for a special demurrer. Hagan vFairfield, supra. Lack of standing to sue, which occurs if plaintiff is not the real party ininterest or is not the person in whom the alleged cause of action lies, should be raised by a

general demurrer for failure to state facts sufficient to constitute a cause of action. See Parker vBowron (1953) 40 C2d 344, 351; Friendly Village Community Assn v Silva & Hill Constr. Co.(1973) 31 CA3d 220, 224. Lack of capacity to sue is waived if not raised by demurrer oranswer; lack of standing is not waived by failure to raise it by demurrer or answer and may beraised at any point in the proceedings. CCP 430.80(a); Parker v Bowron, supra.On the effect on the litigation of the revival of corporate capacity to sue, see Center for SelfImprovement & Community Dev. v Lennar Corp., supra (procedural steps in litigation taken oncorporations behalf during incapacity for failure to comply with Rev & T C 23305 wererevived when defect cured).23.32 4. Another Action PendingThere is another action pending between the parties to this action on the same cause of actionas alleged in the __[complaint/first cause of action]__. That action is No. ___ in the ______Court of ______ County, and defendant asks that the Court take judicial notice of that actionunder Evidence Code 452(d). A certified copy of the complaint and answer in that action isattached to this demurrer and marked as Exhibit A.Although it is not favored, the court may sustain a demurrer on this ground when the parties inthe two cases are identical and the causes of action and issues in the two actions aresubstantially the same. The parties in both actions must also stand in the same relative positionas plaintiff and defendant. CCP 430.10(c); Lord v Garland (1946) 27 C2d 840, 848; Childs vEltinge (1973) 29 CA3d 843, 848. The test for sustaining a demurrer on the ground that anotheraction is pending is whether the cases are sufficiently similar that a final judgment in the firstaction could be pleaded as a bar to the second. Lord v Garland, supra; Colvig v RKO Gen., Inc.(1965) 232 CA2d 56, 73. See also Bush v Superior Court (1992) 10 CA4th 1374, 1384 (claimpreclusion required; issue preclusion does not suffice).EXAMPLE: A pending dissolution action did not preclude a wife from bringing a second,separate action against her husband and his business partners in Beehler v Beehler (1979) 100CA3d 376. The wife claimed that her interest in certain real property had not been declared,that she had been deprived of funds lawfully due her, and that gifts had been made ofcommunity property without her consent. Her husband and his partners as defendantssuccessfully demurred, and a judgment of dismissal was entered. The appellate court reversedthe judgment on the ground that the parties and issues in the civil suit were not the same asthose in the dissolution. Although the wife could have joined the business associates in thedissolution, she was not required to do so. 100 CA3d at 382.NOTE: A demurrer on this ground is similar in effect to, but narrower than, the exclusiveconcurrent jurisdiction rule, which does not require absolute identity of parties, causes ofaction, or remedies sought in the original and subsequent actions. People ex rel Garamendi vAmerican Autoplan, Inc. (1993) 20 CA4th 760, 769; Plant Insulation Co. v Fibreboard Corp.(1990) 224 CA3d 781, 788. On exclusive concurrent jurisdiction, see 6.8.A demurrer on the ground that another action is pending is appropriate only if the other actionis pending in California; if the action is pending in another state, a stay should be sought by amotion under CCP 430.10 (for inconvenient forum; see chap 21) so that factual matter outsidethe pleadings can be submitted. Lord v Garland, supra; Leadford v Leadford (1992) 6 CA4th

571, 574. See also Gregg v Superior Court (1987) 194 CA3d 134, 16 (state court action andrelated federal court action; demurrer does not lie).A defendant may bring the existence of the pending action and the names of the parties andissues in that action to the attention of the court by requesting that judicial notice be taken ofthe records of that court. See 23.22.The proper order for the judge to make on sustaining a demurrer on the ground of anotheraction pending is not dismissal, but an order abating further proceedings in the present actionuntil termination of the prior action. Branson v Sun-Diamond Growers (1994) 24 CA4th 327,336 n2. Beehler v Beehler, 100 CA3d at 384. See Franchise Tax Bd. v Firestone Tire & RubberCo. (1978) 87 CA3d 878, 884; Childs v Eltinge, supra.If the parties in the first action remain the same and if the court renders a judgment on themerits in that action, the demurring party should be granted leave to amend to plead the resjudicata effect of that judgment as a bar to the present action. Lord v Garland, 27 C2d at 851. Ifthe demurring defendant is dismissed from the prior action or if the prior action is notdetermined on the merits, the trial court should hear and decide the rights of the parties inaccordance with the issues presented by the pleadings in the second action. 27 C2d at 851. SeeKarp v Dunn (1964) 229 CA2d 192, 195.NOTE: Counsel should check local rules for requirements to report related cases to the courtand other parties.5. Defect or Misjoinder of Parties23.33 a. DefectThere is a defect of parties in that __[name]__ is a necessary party __[plaintiff/defendant]__under Code of Civil Procedure 389.The objection that there is a defect of parties (CCP 430.10(d)) focuses on nonjoinder. Thedemurrer must specify who else should have been joined or of what the nonjoinder consists.Kreling v Kreling (1897) 118 C 413, 420. See Union Carbide Corp. v Superior Court (1984) 36C3d 15, 22 (demurrer raising nonjoinder of allegedly indispensable parties held properlyoverruled).Code of Civil Procedure 389 specifies persons who must be joined in an action (see chap 14).It appears that under that section, as an alternative to a demurrer, a defendant may move thecourt for an order that the missing person be made a party. See generally 5 Witkin, CaliforniaProcedure, Pleading 972 (5th ed 2008).23.34 b. MisjoinderThere is a misjoinder of parties in that __[name]__ is not a proper party__[plaintiff/defendant]__ because __[specify]__.A demurrer on the ground of misjoinder lies only when the defect appears on the face of thecomplaint or matters judicially noticed. Royal Surplus Lines Ins. Co. v Ranger Ins. Co. (2002)100 CA4th 193, 198. A demurrer on this ground must specify the particulars in which amisjoinder is claimed. Adams v National Auto. Ins. Co. (1943) 56 CA2d 905, 909 (generallanguage that there was misjoinder of causes of action, and misjoinder of parties defendant not

a good plea of misjoinder). However, it appears that designating the persons who areimproperly joined is sufficient, and the reasons joinder was improper need not be stated in thedemurrer. Gardner v Samuels (1897) 116 C 84, 88 (each defendant distinctly specified indemurrer that he was improperly joined with other defendant; this statement sufficiently calledplaintiffs attention to objection to complaint).A defendant who is improperly joined with other defendants in the action can demur on thisground in order to be dismissed from the action; however, it appears that the demurringdefendant cannot have other defendants dismissed on the ground that they are improperlyjoined unless it can be shown that their continued presence is prejudicial. Royal Surplus LinesIns. Co. v Ranger Ins. Co., supra. A proper defendant is seldom injured by the joinder ofunnecessary or improper parties, plaintiff or defendant, and his or her demurrer ought to beoverruled. Royal Surplus Lines Ins. Co. v Ranger Ins. Co., supra. See generally 5 Witkin,California Procedure, Pleading 973 (5th ed 2008).Generally, a demurrer on this ground is not the proper procedure for testing the propriety of aclass action. See Vasquez v Superior Court (1971) 4 C3d 800, 820; Tarkington v CaliforniaUnemployment Ins. Appeals Bd. (2009) 172 CA4th 1494, 1511 (class suitability should not bedecided by demurrer); Wechsler v Laskey-Weil, Inc. (1974) 42 CA3d 728. But see Rose vMedtronics, Inc. (1980) 107 CA3d 150, 154 (medical negligence against manufacturer ofpotentially defective cardiac pacemakers for injuries to plaintiff and other users). In Rose, thecourt, although recognizing that a demurrer is not the preferred means of testing the proprietyof a class action, upheld the trial courts ruling dismissing the class action allegations when thecomplaint on its face did not contain sufficient facts to establish a class interest. The courtfound that the action was ill suited as a class action because the factual questions and legalissues raised in the pleadings on behalf of 4000 potential claimants were preponderantlydiverse rather than common. 107 CA3d at 157. On hearing procedure for challenging classaction, see CC 1781(c).23.35 6. Uncertain, Ambiguous, or UnintelligibleThe __[complaint/first cause of action]__ is uncertain in that __[state nature of uncertainty orambiguity, e.g.,]__:1. The date of the alleged occurrence cannot be ascertained.2. It cannot be determined from paragraph 4 whether it is claimed that __[name]__ was theemployer of __[name]__ or was __[his/her]__ agent.3. Lines 20 through 24 on page 2 are unintelligible.The objection that the complaint or part of it is uncertain includes the objections that it isambiguous or unintelligible. CCP 430.10(f). Objections to these defects are waived if notraised by special demurrer. Collins v Rocha (1972) 7 C3d 232, 239; Drennan v Star Paving Co.(1958) 51 C2d 409, 417; Stockton Newspapers v Redevelopment Agency (1985) 171 CA3d 95,103. If there is more than one respect in which a complaint or cause of action is uncertain, eachspecification of uncertainty should be raised in a separate, numbered paragraph of the demurrer.However, the demurring party should be selective; law and motion judges rarely welcomenumerous specifications of uncertainty. Examples of successful use of the uncertainty objectioninclude:

The complaint fails to allege a material date such as that of an occurrence or of a

contract. See Williamson v Joyce (1902) 137 C 151; Corum v Hartford Acc. & Indem.Co. (1945) 67 CA2d 891, 894. The complaint is so unintelligible that it is unclear whether particular counts are directedtoward the demurring defendant or for what loss the plaintiff seeks recovery. SeeGreenberg v Hollywood Turf Club (1970) 7 CA3d 968, 974; Lapique v Ruef (1916) 30CA 391. The pleading alleges conclusions of law without supporting facts. See Ankeny vLockheed Missiles & Space Co. (1979) 88 CA3d 531, 537. See generally 5 Witkin,California Procedure, Pleading 974976 (5th ed 2008).The special demurrer for uncertainty is not favored and will be overruled if: The uncertainty concerns inconsequential matters. See Baird v Disheski (1929) 102 CA452, 457. See also Greenberg v Hollywood Turf Club, supra. The allegations of the complaint are sufficiently clear to apprise the defendant of theissues involved. Williams v Beechnut Nutrition Corp. (1986) 185 CA3d 135, 139 n2;Gressley v Williams (1961) 193 CA2d 636, 643. The facts may be presumed to be within the knowledge of the demurring party. Strozierv Williams (1960) 187 CA2d 528, 532.Uncertainty about the legal effect of the facts alleged in the complaint is not a ground forspecial demurrer. County of Santa Clara v Hayes Co. (1954) 43 C2d 615, 619. Nor does theinclusion of surplus allegations in the complaint render it uncertain. See Brea v McGlashan(1934) 3 CA2d 454, 460.Common counts (e.g., money paid, lent, or received) are not demurrable for uncertainty. Moyav Northrup (1970) 10 CA3d 276, 279.PRACTICE TIP: Filing a special demurrer for uncertainty can sometimes force the plaintiffto allege facts that show lack of jurisdiction (e.g., residence of plaintiff or defendant, place ofentering into a contract or place of its performance, or location where a tortious act allegedlyoccurred).23.36 7. Uncertain Whether Contract Written, Oral, or Implied by ConductIt cannot be ascertained from the complaint whether the contract __[e.g., on which this actionis founded]__ is written, oral, or implied by conduct.This ground of demurrer may be asserted only against a cause of action founded on a contract.CCP 430.10(g); Fanucchi v Coberly-West Co. (1957) 151 CA2d 72, 83. It does not apply to anaction based on recognized common counts. See Moya v Northrup (1970) 10 CA3d 276, 285.PRACTICE TIP: If this ground for objection is sustained and if the plaintiff amends to showthat the contract was oral, a general demurrer raising the statute of frauds may then beconsidered. See, e.g., Hills Transp. Co. v Southwest Forest Indus. (1968) 266 CA2d 702.23.37 8. No Certificate of Merit in Action for Malpractice of Architect, ProfessionalEngineer, or Land SurveyorOn or before the date of service of the __[complaint/cross-complaint]__, no certificate was

executed by the attorney for __[plaintiff/cross-complainant]__ and filed as required by Code of

Civil Procedure 411.35 declaring that:[Option 1]1. The attorney has reviewed the facts of the case and consulted with and received an opinionfrom at least one nonparty __[architect/professional engineer/land surveyor]__ as to whetherthe __[defendant/cross-defendant]__ was negligent in performing the professional services and,on the basis of that review and consultation, believes there is a reasonable and meritoriouscause for filing the action.[Option 2]1. The attorney was unable to obtain a consultation with an __[architect/professionalengineer/land surveyor]__ because a statute of limitations would impair the action and thecertificate could not be obtained before the impairment of the action.[Option 3]1. The attorney was unable to obtain the consultation because, after making three good faithattempts with three separate __[architects/professional engineers/land surveyors]__, nonewould agree to a consultation.Under CCP 411.35(g), failure to file a certificate is grounds for a demurrer or a motion tostrike. A violation of this section may also constitute unprofessional conduct and be grounds fordiscipline against the attorney. See CCP 411.35(f).23.38 E. Supporting Memorandum; ExamplesA party who files a demurrer must file and serve a memorandum in support of each groundstated in the demurrer. Cal Rules of Ct 3.1112(a), 3.1113(a). The absence of a supportingmemorandum may be construed as an admission that a special demurrer is not meritorious andas a waiver of those grounds. Cal Rules of Ct 3.1113(a). Grounds for a general demurrer are notwaived by failure to file a supporting memorandum. See, CCP 430.80 (objection to lack ofsubject matter jurisdiction or failure to state sufficient grounds for cause of action notwaivable). Counsel should not, however, rely on a demurrer submitted without a supportingmemorandum.In drafting a memorandum to be filed in support of a demurrer, counsel should considernumbered headings or introductory lines if there is more than one ground for objection to thecomplaint in order to separate the arguments that support each of the grounds, e.g.:1. Supporting the objection that __[plaintiffs first alleged cause of action does not state factssufficient to constitute a cause of action]__:a. __[State first point in support of first ground for demurrer, with its authorities and tie-instatement]__.b. __[State next point in support of first ground for demurrer]__.2. Supporting the objection that __[state second ground of demurrer followed by its points,listing arguments and authorities in above format]__.On format of a supporting memorandum generally, see chap 12.

23.39 F. Notice of Hearing; Service

A party who files a demurrer must also serve and file a notice of hearing in accordance withCCP 1005. Cal Rules of Ct 3.1320(c). The notice of hearing on a demurrer is generally aseparate document. See form in 23.75. However, the hearing date can be noted in the captionto the demurrer and the notice of hearing can be combined with the demurrer itself. Cal Rulesof Ct 3.1112(a).The same time periods required for noticed motions apply to demurrers, e.g., 16 court daysnotice of hearing, extension of period if service is by a method other than personal delivery.See chap 12. Unless otherwise ordered, hearing on a demurrer must occur within 35 days afterfiling or on the first court date available thereafter. Cal Rules of Ct 3.1320(d). On proceduresfor orders shortening time, see chap 13.IV. DEMURRER TO CROSS-COMPLAINT23.40 A. Similarity to Demurrer to ComplaintThe grounds for objections in a demurrer to a cross-complaint are the same as for a demurrer toa complaint and may be raised only if they appear on the face of the cross-complaint or from amatter of which the court may take judicial notice. CCP 430.10, 430.30, 432.10. See23.2323.37.Because the court can take judicial notice of allegations in the complaint in the action, ademurrer to a cross-complaint may be used to challenge whether the cross-complaint ispermissible under CCP 428.10. See White Lighting Co. v Wolfson (1968) 68 C2d 336, 353; 5Witkin, California Procedure, Pleading 1156 (5th ed 2008). See also Babb v Superior Court(1971) 3 C3d 841 (mandate to require trial court to sustain demurrer to improper crosscomplaint).23.41 B. Timing For Demurrer to Cross-ComplaintThe time to file a demurrer to a cross-complaint or an amended cross-complaint is the same asfor a demurrer to a complaint, normally within 30 days after service of the cross-complaint.CCP 430.40, 432.10. See 23.16.23.42 C. Tactical ConsiderationsUnless the cross-defendant is also the original plaintiff in the action, the reasons to demur to across-complaint or to refrain from demurring are generally the same as for demurrers tocomplaints. See 23.6.A plaintiff/cross-defendant may have more reason than most defendants to avoid the delay inthe progress of the lawsuit caused by the demurrer procedure. It may be wiser to stateobjections in an answer filed in response to the cross-complaint or to raise legal issues by otherprocedures. See 23.8. Although sustaining a demurrer to a cross-complaint may eliminate it orsome of its causes of action, the demurrer will not spare a plaintiff/cross-defendant fromproceeding with the action on issues framed by the original complaint and answer.V. DEMURRER TO ANSWER23.43 A. Multiple Party Variations

If there is more than one defendant or one plaintiff, counsel should be careful to specify onwhose behalf and against whom the demurrer is filed. The court must overrule a demurrer filedjointly by two plaintiffs if the answer states a defense against either. Neumann v Moretti (1905)146 C 25, 28.23.44 B. Grounds For Demurrer to AnswerThe grounds for demurrer to an answer, listed in CCP 430.20, are: The answer does not state facts sufficient to constitute a defense; The answer is uncertain (uncertain includes ambiguous and unintelligible); and When the answer pleads a contract, it cannot be ascertained whether the alleged contractis written or oral.Unless each ground for an objection to an answer raised by demurrer is distinctly specified, thedemurrer may be disregarded. CCP 430.60. Each ground must be in a separate paragraph andstate whether it is directed to the entire answer or to specified defenses. Cal Rules of Ct3.1320(a). The clauses shown in 23.2723.37 can be inserted as numbered paragraphs in thedemurrer. See form in 23.78.Failure to demur to an answer constitutes a waiver of the grounds for objection in CCP430.20(b) (answer is uncertain) and 430.20(c) (whether the contract is written or oral)but not the ground in CCP 430.20(a) (answer does not state facts sufficient to constitute adefense). (CCP 430.80(b)).Like a demurrer to a complaint or cross-complaint, a demurrer to an answer: Searches only for defects in the allegations on the face of the answer; or Raises matters of which the court must or may take judicial notice.A demurrer may be taken to the whole answer or to one or more defenses raised in it. CCP430.50(b). However, the court may overrule a ground of demurrer stated against the wholeanswer if the answer contains several defenses, one of which is not demurrable. Eich v Greeley(1896) 112 C 171, 173; South Shore Land Co. v Petersen (1964) 226 CA2d 725, 734.PRACTICE TIP: If the answer contains more than one defense, counsel must specificallyindicate the defense to which the ground for demurrer applies, e.g., the first defense isuncertain. Cal Rules of Ct 3.1320(a).23.45 1. Failure to State Facts Sufficient to Constitute DefenseThe __[answer/first defense]__ does not state facts sufficient to constitute a defense.This ground for objection to an answer under CCP 430.20(a) is sometimes called a generaldemurrer and shares many characteristics with a general demurrer to a complaint, i.e., theobjection is not waived by failure to raise it by demurrer. The court may sustain a generaldemurrer to a defense that the law does not recognize, that lacks essential allegations of fact, orthat is stated in the form of conclusions. See Universal Land Co. v All Persons (1959) 172CA2d 739, 741; Youdall v Kaufman (1921) 55 CA 363, 368.A defense that is barred by a statute of limitations is also demurrable on these grounds.Bradbury v Higginson (1914) 167 C 553, 557; Universal Land Co., 172 CA2d at 742. If a

statute of limitations is the basis of the demurrer, the following language may be used to statethis ground for objection:The __[answer/first defense]__ does not state facts sufficient to constitute a defense in that thedefense is barred by __[e.g., Code of Civil Procedure 319]__.23.46 2. UncertaintyThe __[answer/first defense]__ is uncertain in that __[specify nature of uncertainty, e.g.]__:1. It cannot be ascertained when the alleged release was given or by whom.2. Allegations that appear to relate to other possible defenses are mingled with allegationsrelating to a claimed release.3. Lines 10 through 20 are unintelligible.NOTE: Uncertain includes ambiguous and unintelligible. CCP 430.20(b).A demurrer on this ground must specify in what way the answer is uncertain. See, e.g., Coons vThompson (1946) 75 CA2d 687, 690.23.47 3. Uncertain Whether Contract Written or OralIt cannot be ascertained from the answer whether the contract pleaded in the __[answer/firstdefense]__ is written or oral.Comment: See CCP 430.20(c). For discussion of demurring to complaint on this ground, see23.36.23.48 C. Timing for Demurrer to AnswerIf counsel decides to demur to an answer (or amended answer), the demurrer should be filedwithin 10 days after service of the answer. CCP 430.40(b), 471.5(b). On the defendantsmotion, the court can strike a late-filed demurrer. See 24.6.Additional time to file may be obtained by stipulation from defense counsel, or by ex parteapplication to the court. CCP 473, 1054; Cal Rules of Ct 2.20. However, counsel shouldcheck local rules for any limitations on the ability to stipulate to extension.A demurrer to an answer is filed and served in the same manner as a demurrer to a complaint,and the time for hearing a demurrer to an answer is set in the same way as for hearing ademurrer to a complaint. See 23.39.23.49 D. Tactical ConsiderationsA plaintiff or cross-complainant may decide to demur in order to eliminate untenable defensesor to obtain a clarifying amendment of the answer so that the nature of one or more of thestated affirmative defenses can be understood. If the goal is to eliminate matters not amountingto a statement of a defense, a motion to strike is the appropriate procedure. CCP 436. See chap24. When a demurrer is filed, the motion to strike must be made at the same time. Cal Rules ofCt 3.1322.Reasons not to demur to an answer include the delay involved in the demurrers being heardand ruled on. It is rare for a court to sustain a demurrer without giving the losing party time toamend the pleading. See 23.55. The gain achieved by demurrer to an answer rarely outweighs

the trouble and expense to the demurring plaintiff or cross-complainant, particularly whenclarification of the stated defenses can be accomplished more easily through discovery.However, elimination of a defense at the demurrer stage can limit the scope of a defendantsdiscovery, which may often be beneficial to a plaintiff or cross-complainant.Counsel considering a demurrer to an answer should evaluate whether a defenses validity canbe appropriately tested at a later stage, e.g., by motion for summary judgment, at a pretrialhearing, or at trial by a motion to exclude evidence. Note that even the striking of allaffirmative defenses does not result in termination of the action without trial if the answer alsocontains denials of material facts. See South Shore Land Co. v Petersen (1964) 226 CA2d 725,733.VI. RESPONSIVE PROCEDURES23.50 A. Amending Pleading Before HearingCounsel for the party against whom the demurrer was filed should consider amending thepleading prior to the hearing. Under CCP 472, after the demurrer is filed but before the issueof law is heard, a party may amend the pleading to eliminate defects raised by the demurrer.See Cotton v StarCare Med. Group, Inc. (2010) 183 CA4th 437, 441 (trial court abuseddiscretion by ruling on demurrer after parties stipulated to continue hearing to allow plaintiffsopportunity to amend).23.51 B. Filing Opposition PapersA party may respond to a demurrer by filing and serving a memorandum in opposition to thedemurrer at least 9 court days before the hearing. CCP 1005(b); Cal Rules of Ct 3.1300(a).Opposition and reply papers must be served electronically or by personal delivery, fax, expressmail, or other method reasonably calculated to ensure delivery by the close of the next businessday after the papers are filed. CCP 1005(c), 1010.6(a)(2), 1013(g). On opposition papersgenerally, see chap 12. On the requirements for electronic service, see CCP 1010.6, 1013(g);Cal Rules of Ct 2.2502.259; 18.2318.40. On the requirements for fax service, see CCP1013(e)(f); Cal Rules of Ct 2.3002.306; 18.1618.22.23.52 VII. DEMURRING PARTYS REPLY PAPERSCounsel for the demurring party may file a reply if the opposing party has raised a point of lawin the opposition papers that requires legal research and written argument to rebut effectively. Awritten reply to the opposition may also assist the court in ruling in the demurring partys favor.NOTE: Reply papers must be served and filed at least 5 court days before the time set for thehearing. CCP 1005(b); Cal Rules of Ct 3.1300(a).VIII. HEARING AND COURT RULING23.53 A. HearingA law and motion judge usually reviews the file before the hearing, often after a workup by alaw clerk, and, in some courts, prepares a tentative ruling available to counsel before thehearing. Counsel may use the tentative ruling to narrow and focus argument. For discussion ofcourt hearing procedures generally, see chap 12.At the hearing, counsel against whom the demurrer was filed may learn the judges position on

specific claimed defects and, if the court sustains the demurrer, how to cure the complaint. Ifone party fails to appear at the hearing on a demurrer, the party who appears may request adecision on the merits. Cal Rules of Ct 3.1320(f). The court has the discretion to continue thehearing for good cause. Cal Rules of Ct 3.1320(f). The court may construe failure to appear insupport of a special demurrer, however, as an admission that the demurrer is not meritoriousand as a waiver of all grounds in the demurrer. Cal Rules of Ct 3.1320(f). See also CCP 591(failure of moving party to prosecute demurrer may be construed as waiver of demurrer). Ifneither party appears, the demurrer may be disposed of on its merits, dropped from thecalendar, or restored on notice or on terms the court deems proper, or the hearing may becontinued. Cal Rules of Ct 3.1320(f).PRACTICE TIP: Counsel who chooses not to attend the hearing should give the court noticeof nonappearance and submit the matter without an appearance, requesting the court to rule onthe demurrer on the basis of the moving and opposing papers on file. See Cal Rules of Ct3.1304(c).The parties are entitled to oral argument on the demurrer. Medix Ambulance Serv. v SuperiorCourt (2002) 97 CA4th 109, 115. See also TJX Cos. v Superior Court (2001) 87 CA4th 747,749 (if genuine dispute exists on whether complaint alleges facts sufficient to establishelements necessary to maintain class action, parties are entitled to oral hearing before courtrules on demurrer).23.54 B. RulingA number of general principles guide the decision to sustain or overrule a demurrer. Materialfacts alleged in a pleading are treated as true for the purpose of ruling on the demurrer.Gruenberg v Aetna Ins. Co. (1973) 9 C3d 566, 572. Facts that may be inferred from thoseexpressly alleged are also taken as true. Harvey v City of Holtville (1969) 271 CA2d 816, 819.However, allegations contradicted by facts of which the court may take judicial notice may bedisregarded. Stoney Creek Orchards v State (1970) 12 CA3d 903, 906.In ruling on a demurrer, specific allegations control general pleadings. Gentry v EBay (2002)99 CA4th 816, 827. A general allegation that eBay engaged in the sale or offer of sale ofcollectibles was irreconcilable with a more specific allegation that the individual defendantssold the items to the plaintiffs, using eBay as a venue. The more specific factual allegationscontrolled. While inconsistent theories of recovery are permitted, a pleading cannot blow hotand cold as to the facts positively stated. Gentry v EBay, supra.The court will, however, presume that a party has stated its case as favorably as possible in thatpartys pleadings. Vanoni v Western Airlines (1967) 247 CA2d 793, 795. Doubt about thecomplaint may be resolved against the plaintiff, and facts not alleged are presumed not to exist.Melikian v Truck Ins. Exch. (1955) 133 CA2d 113, 115 (complaint failed to allege whetheracceptance of settlement offer occurred before or after verdict).The court may not consider contentions, deductions, or conclusions of fact or law contained inthe pleading in judging its sufficiency. Gruenberg v Aetna Ins. Co., supra. For example,plaintiff cannot substitute a statement that it has exhausted all administrative remedies forallegations demonstrating that plaintiff has in fact exhausted these remedies. Pan Pac. Prop. vCounty of Santa Cruz (1978) 81 CA3d 244, 251.

The pleadings must be liberally construed with a view toward justice between the parties. CCP452; Gentry v EBay (2002) 99 CA4th 816, 827; Cameron v Wernick (1967) 251 CA2d 890,892. Counsel should note that complaints have been upheld even though the facts were notclearly stated or were intermingled with a statement of irrelevant facts or even though theplaintiff had misconceived the remedy or relief sought. See, e.g., Gruenberg v Aetna Ins. Co.,supra; Colvig v RKO Gen., Inc. (1965) 232 CA2d 56, 66. Likewise, courts have ruled on thesubstance of an objection even if the ground stated in the demurrer was mislabeled. See, e.g.,Youngman v Nevada Irrig. Dist. (1969) 70 C2d 240, 244 n2. However, a demurrer may beoverruled if the ground for objection is not one of those listed in CCP 430.10 or is notspecifically or clearly stated. See CCP 430.60. In essence, the ruling on a demurrer determinesa legal issue on the basis of assumed facts, i.e., those properly alleged in the complaint oranswer, regardless of whether they ultimately prove true. For further discussion, see 5 Witkin,California Procedure, Pleading 950 (5th ed 2008).23.55 1. Leave to AmendWhen sustaining a demurrer, the court may grant leave to amend the pleading on any terms asmay be just. CCP 472a(c). The plaintiff may amend the complaint only as authorized by thecourt; it may not amend the complaint to add a new cause of action without permission, unlessthe new cause of action is within the scope of the order granting leave to amend. Harris vWachovia Mortgage, FSB (2010) 185 CA4th 1018, 1023. The court is required to fix the timefor filing the amendment or amended pleading. CCP 472a(c).The court will sustain a demurrer with leave to amend if there is a reasonable possibility thatamendment will cure a defect in the complaint. Minsky v City of Los Angeles (1974) 11 C3d113, 118. Not to do so is an abuse of discretion. La Sala v American Sav. & Loan Assn (1971)5 C3d 864, 876 (demurrer sustained without leave to amend when reasonable possibilityexisted that complaint could have been cured).Sustaining a general demurrer without leave to amend is not an abuse of discretion if it appearsfrom the complaint that under applicable substantive law there is no reasonable possibility thatamendment can cure the defect. Vater v County of Glenn (1958) 49 C2d 815, 821; Hoffman vSmithwoods RV Park (2009) 179 CA4th 390, 408 (no abuse of discretion to deny leave toamend; plaintiff failed to carry burden of demonstrating reasonable possibility that amendmentscould cure defects); Sackett v Wyatt (1973) 32 CA3d 592, 603; Friendly Village CommunityAssn v Silva & Hill Constr. Co. (1973) 31 CA3d 220, 225 (complaint showed that plaintiffshad no standing to sue); Spencer v Crocker First Natl Bank (1948) 86 CA2d 397, 400 (nosubject matter jurisdiction). A court properly sustains a demurrer without leave to amend whenthe facts are not in dispute and the nature of the plaintiffs claim is clear, but, under thesubstantive law, no liability exists. Traverso v Department of Transp. (2001) 87 CA4th 1142,1144.Courts usually give the plaintiff another chance to amend if a first attempt to cure a defect isunsuccessful, i.e., the amended complaint remains demurrable. After repeated unsuccessfulattempts, the court may sustain the demurrer without leave to amend, concluding that it is theabsence of facts rather than a lack of skill in stating them that is the cause of the defect. SeeLoeffler v Wright (1910) 13 CA 224, 232. See also Banerian v OMalley (1974) 42 CA3d 604,616. For further discussion, see 5 Witkin, Cal Procedure, Pleading 991993 (5th ed 2008).

NOTE: When the demurrer itself is the subject of a motion to strike (see chap 24), and thedemurrer is stricken, if the demurring party has not yet filed an answer, the court must allow ananswer to be filed on terms that are just. CCP 472a(c).23.56 2. Decision or OrderThe court may overrule a demurrer, sustain it with leave to amend, or sustain it without leave toamend. See CCP 472a.The court may rule from the bench, and enter a minute order at the time of the hearing, or itmay take the demurrer under consideration and rule at a later time. Some courts will issue atentative ruling the day before the hearing, then modify or make it final at or after any hearing.An order sustaining or overruling a demurrer is deemed excepted to and will be appealable inan appeal from a final judgment. CCP 647; Dumm v Pacific Valves (1956) 146 CA2d 792,794.23.57 a. Time to Answer or AmendIf the court overrules a demurrer to a complaint or cross-complaint when there is no answer onfile, the court must allow an answer to be filed or entered on such terms as may be just. CCP472a(b). If the court does not set a time, 10 days within which to answer or amend will bedeemed to have been granted. Cal Rules of Ct 3.1320(g). In forcible entry, forcible detainer, orunlawful detainer cases, the defendant must file the answer in 5 calendar days. CCP 1167.3;Cal Rules of Ct 3.1320(g). When a demurrer is denied after remand from federal court and ananswer was not filed with the demurrer, the defendant has 30 days from the date the state courtreceives the case on remand to answer the complaint. CCP 430.90(a)(2). See 22.96.If the court overrules the demurrer at the hearing, counsel for the demurring party may ask thecourt to specify the period within which it must file an answer. A party who seeks more than 10days to answer or amend can ask the court to specify a longer time in the decision or order.23.58 b. Statement of GroundsThe decision or order must include a statement of the specific statutory ground or grounds onwhich the decision to sustain a demurrer is based. CCP 472d. The statement may be byreference to appropriate pages and paragraphs of the demurrer. CCP 472d. The trial court isnot required to state its reasons for sustaining the demurrer on the specified grounds. FremontIndem. Co. v Fremont Gen. Corp. (2007) 148 CA4th 97, 111; Stevenson v San Francisco Hous.Auth. (1994) 24 CA4th 269, 275. The party against whom the demurrer is sustained may waivethese requirements (CCP 472d) and does so by not calling the failure to specify grounds to theattention of the trial court. E. L. White, Inc. v City of Huntington Beach (1978) 21 C3d 497, 504n2; Krawitz v Rusch (1989) 209 CA3d 957, 962; Cohen v Superior Court (1966) 244 CA2d650, 654.When a demurrer, interposed on both general and special grounds, is sustained in general termsand without specification of reasons, it will be presumed that the trial court ruled only on thegeneral demurrer. E.L. White, Inc., 21 C3d 497 at 504 n1.23.59 3. Notice of DecisionThe time within which an answer must be filed after a demurrer has been overruled, or an

amended pleading must be filed after a demurrer has been sustained, begins to run when theparty who must act is served with notice of the courts decision, unless notice was waived inopen court and the waiver entered in the minutes or docket. CCP 472b; Taliaferro v BekinRealty Co. (1959) 176 CA2d 240, 242. If a notice of decision is served by mail, service iscomplete when deposited in the mail, in accordance with CCP 1013(a).The court or prevailing counsel often asks the parties to waive notice, which usually is agreedto in open court. If the demurrer is taken under submission, the California Rules of Courtrequire the clerk to notify the parties of the ruling, but this notification does not constituteservice of notice of the courts decision or order described in CCP 472b. See Cal Rules of Ct3.1109(a)(c).PRACTICE TIP: Although not required to do so, the prevailing party may attach a copy ofthe order overruling or sustaining the demurrer as an exhibit to the notice of decision. See formin 23.79.IX. POSTHEARING PROCEDURES23.60 A. Motion for ReconsiderationAfter the court has sustained a demurrer to a complaint or cross-complaint with or withoutleave to amend, the plaintiff may request reconsideration by the court within 10 days. CCP1008; Davis v Stroud (1942) 52 CA2d 308, 315; Rains v Superior Court (1984) 150 CA3d933, 943, 198 CR 249 (CCP 1008 applies to demurrers). The same rules apply to a defendantsrequest for reconsideration after the court has overruled a demurrer to the complaint orsustained a demurrer to an answer. A plaintiff or cross-complainant may request reconsiderationof a decision or an order overruling a demurrer to an answer.On motions for reconsideration in general, see 12.13212.139.B. Demurrer to Complaint or Cross-Complaint1. If Demurrer Overruled23.61 a. AnswerIf it has overruled a demurrer, the court must allow the opposing party to file an answer onsuch terms as may be just. CCP 472a.Answering after a demurrer has been overruled precludes appellate review of that decision untilafter judgment is entered in the action, unless the issue can be raised by peremptory writ (see23.63). Answering does not waive fundamental defects of substance in the complaint.Overruling a demurrer that raises such defects can be cited as reversible error on appeal. Pagev Page (1962) 199 CA2d 527, 532.NOTE: If the defect raised by demurrer was one of form, even a formal failure to state a causeof action, answering and going to trial on the issues waives the formal defects; any error inoverruling the demurrer is not deemed prejudicial and reversible on appeal. Baker v Miller(1923) 190 C 263, 267; Goble v Dotson (1962) 203 CA2d 272, 282; Page v Page, supra. Seegenerally 5 Witkin, California Procedure, Pleading 985 (5th ed 2008).23.62 b. Default and Appeal

An order overruling a demurrer is not appealable and can ordinarily be reviewed only on appealfrom a judgment in the action. See County of Santa Barbara v Superior Court (1971) 15 CA3d751, 754. Thus, a defendant who wants immediate appellate review of an order overruling ademurrer must decline to answer, suffer the plaintiffs obtaining a default judgment under CCP585587, and appeal from that judgment, unless the extraordinary writ procedure may beused. See 23.63.WARNING: Permitting entry of a default judgment against a client is risky; the appellatecourt will indulge all inferences in favor of the plaintiff. It is better practice to litigate the caseon its merits and raise the question of the validity of the pleading after any adverse judgment.Appeal from a default judgment may be taken on jurisdictional grounds or because of basicdefects in the pleadings. Lee v Ski Run Apartments Assocs. (1967) 249 CA2d 293, 294. Adefault judgment admits only facts that were well pleaded. Buck v Morrossis (1952) 114 CA2d461, 466. Thus a defendant can object on appeal that the complaint failed to state factssufficient to constitute a cause of action. Rose v Lawton (1963) 215 CA2d 18, 19. But seeMolen v Friedman (1998) 64 CA4th 1149, noting the tension between the Rose approach andsupreme court opinions holding that the complaint need not state a cause of action if it apprisesthe defendant of the nature of the plaintiffs demand. Defects that were challenged only byspecial demurrer, however, cannot be raised on appeal from a default judgment. See Price vHibbs (1964) 225 CA2d 209, 217; Buck v Morrossis, supra. Failure to seek relief from defaultdoes not waive the right to appeal. See Bristol Convalescent Hosp. v Stone (1968) 258 CA2d848, 859.23.63 c. Writ of ProhibitionAn order overruling a demurrer made on the ground that the court had no jurisdiction of thesubject matter of the cause of action alleged in the complaint (CCP 430.10(a)) can bereviewed by prohibition under CCP 11021103. Tide Water Assoc. Oil Co. v Superior Court(1955) 43 C2d 815, 820; County of Santa Barbara v Superior Court (1971) 15 CA3d 751, 754.See also Harden v Superior Court (1955) 44 C2d 630, 634 (testing constitutionality of statuteor ordinance); People v Superior Court (Pierpont) (1947) 29 C2d 754, 756. See generallyCalifornia Civil Writ Practice 4.2-4.9 (4th ed Cal CEB).2. If Demurrer Sustained With Leave to Amend23.64 a. AmendmentWhen the court sustains a demurrer with leave to amend, the court fixes the time within whichan amendment or amended pleading must be filed. CCP 472a. If no time is set by the court, 10days is deemed to have been granted. Cal Rules of Ct 3.1320(g).If an amended pleading is not filed, a motion to dismiss the entire action and for entry ofjudgment may be made by ex parte application under CCP 581(f)(2). Cal Rules of Ct3.1320(h); Sadler v Turner (1986) 186 CA3d 245 (ex parte motion to dismiss complaint underformer CCP 581(3) granted when complaint not amended within time permitted by court). If,however, an amended pleading is filed after the time allowed, an order striking the amendedpleading must be obtained by noticed motion under CCP 1010. Cal Rules of Ct 3.1320(i).NOTE: Mandatory relief under CCP 473(b) does not apply to a discretionary dismissal based

on the failure to timely file an amended complaint after a demurrer has been sustained withleave to amend when the dismissal was entered after a hearing on noticed motion whichrequired the court to evaluate the reasons for delay in determining how to exercise itsdiscretion. Leader v Health Indus. of Am., Inc. (2001) 89 CA4th 603, 620 (trial court evaluatedreasons for delay in motions under CCP 473(a)(1) to allow filing late amended pleading, CCP436 to strike pleading filed in violation of court order, and CCP 581(f)(2) to dismiss actionfor failure to timely amend after demurrer sustained with leave to amend).Filing an amended complaint waives any error in sustaining the demurrer. Edgar RiceBurroughs, Inc. v Metro-Goldwyn-Mayer, Inc. (1962) 205 CA2d 441, 446.Amendments should usually be presented in the form of an amended complaint, i.e., a newcomplaint complete in itself, even if the demurrer was sustained as to only one cause of action.An amended complaint must be filed if the demurrer was sustained to the entire complaint. SeeCohen v Superior Court (1966) 244 CA2d 650, 655. In some instances, an amendment to thecomplaint will suffice. See CCP 471.5(a), 472a; see chap 16. The amendment or amendedcomplaint must be filed and served on all parties to the action. See CCP 465.23.65 b. Voluntary DismissalIf the court sustains the demurrer with leave to amend, the plaintiff may decline to amend thecomplaint and instead dismiss the action without prejudice until expiration of the time toamend. Parsons v Umansky (1994) 28 CA4th 867, 871 (voluntary dismissal under CCP581(b)(1)). See Wells v Marina City Props., Inc. (1981) 29 C3d 781, 789. After expiration ofthe time to amend, the plaintiff can no longer voluntarily dismiss the action, even if the trialcourt has not yet entered a judgment of dismissal on the sustained demurrer. Wells v MarinaCity Props., Inc., supra (no voluntary dismissal under former CCP 581(1)).23.66 c. Demurrer or Answer After Amended Complaint FiledA defendant has 30 days after being served with an amended complaint or amendments to acomplaint in which to demur again or answer (see CCP 430.40(a), 471.5(a)) unless the courthas specified a different time (see CCP 586(a)(1)). The time to demur to an amendedcomplaint may be extended in the same way as time to demur to an original complaint. See23.16. A demurrer to an amended complaint should be filed and served in the same way as ademurrer to the original complaint. See 23.3823.39.Grounds of objection to the original complaint that were overruled should not be reassertedagainst the amended complaint unless the new or changed allegations make them newly valid.Other grounds may be reasserted if the amendments do not cure the defect, and new or restatedallegations in the amended complaint may suggest additional grounds for a demurrer.PRACTICE TIP: A defendant may choose to answer rather than demur to a defectiveamended complaint for the same reasons that defendants sometimes choose to answer ratherthan demur to original complaints. See 23.6.23.67 d. Appeal After DismissalAn order sustaining a demurrer with leave to amend is not appealable. Bartlett v HawaiianVillage, Inc. (1978) 87 CA3d 435, 437 n4. A plaintiff can, however, obtain appellate review ofthe sufficiency of a complaint by declining to amend the complaint, obtaining an order of

dismissal, which acts as a final judgment, and appealing from that judgment. Jeffers v ScreenExtras Guild, Inc. (1951) 107 CA2d 253, 254. See generally 5 Witkin, California Procedure,Pleading 990 (5th ed 2008). Thus, a plaintiff advancing a novel theory of liability and seekingan inexpensive and expeditious review of it, rather than go to trial, can state as strong a case aspossible in the complaint, await an order sustaining the demurrer and judgment of dismissal,and appeal on the clerks transcript.Under the one-final-judgment rule, a trial court cannot order dismissal after sustaining ademurrer unless it has sustained the demurrer as to all causes of action without leave to amend.Therefore, the plaintiff cannot appeal from a purported judgment on one cause of action if anyother cause is pending. If a demurrer is sustained as to less than the entire complaint, adismissal should not be granted. The ruling should be embodied in a minute order, and theaction should proceed to final judgment on any remaining causes of action. See U.S. Fin. vSullivan (1974) 37 CA3d 5, 11. However, if the trial court fails to dispose of all causes ofaction through inadvertence or mistake, rather than through an intention to retain the remainingcauses of action for trial, the appellate court can amend the judgment and dismiss the remainingcauses of action, thus preserving the appeal. Tenhet v Boswell (1976) 18 C3d 150, 154.When a case involves multiple parties and the trial court sustains demurrers to all causes ofaction involving one party without leave to amend, leaving no issue to be determined for thatparty, an appeal is proper. Justus v Atchison (1977) 19 C3d 564, disapproved on other groundsin Ochoa v Superior Court (1985) 39 C3d 159, 171. If the demurrer is sustained as to theplaintiffs principal cause of action, a judgment of dismissal is also proper and appealable. Seegenerally 9 Witkin, Procedure, Appeal 118119, 122125.Either the plaintiff or the defendant may move for an order of dismissal and entry of judgmentafter the time to amend has passed. CCP 581(f)(2). The motion may be made by ex parteapplication under CCP 581(f)(2). Cal Rules of Ct 3.1320(h); Oppenheimer v Deutchman(1955) 132 CA2d Supp 875, 879.If the plaintiff chooses not to amend and instead appeals after dismissal, the appellate court willassume that the complaint to which the demurrer was sustained stated the plaintiffs case asstrongly as possible. Cal Francisco Inv. Corp. v Vrionis (1971) 14 CA3d 318, 321. The factsalleged in the complaint will be taken as true, but the complaint will be strictly construed.Bradler v Craig (1969) 274 CA2d 466, 470. Moreover, if the plaintiff declines to amend afterhaving been granted leave to do so, dismissal of the action will be affirmed on appeal if thecomplaint is objectionable on any ground. Hiemstra v Huston (1970) 12 CA3d 1043, 1045;Totten v Underwriters at Lloyds of London (1959) 176 CA2d 440, 442.3. If Demurrer Sustained Without Leave to Amend23.68 a. Writ of MandateNo appeal lies from an order sustaining a demurrer without leave to amend. Youngblood vBoard of Supervisors (1978) 22 C3d 644, 651. If the trial court sustains a demurrer withoutleave to amend to less than all causes of action in a complaint, the plaintiff may seek from thereviewing court a writ of mandate directing the trial court to overrule the demurrer. Althoughappellate courts have generally been reluctant to extend extraordinary relief at the pleadingstage, mandamus will lie when it appears that the trial court has deprived a party of an

opportunity to plead a cause of action or defense and when extraordinary relief may avert a trialand reversal. Coulter v Superior Court (1978) 21 C3d 144, 148.23.69 b. Dismissal and AppealA plaintiff who is unable to obtain appellate review by mandamus of a trial court ordersustaining a demurrer without leave to amend to less than all causes of action can obtain reviewby direct appeal if the viable causes of action are voluntarily dismissed, a judgment ofdismissal is obtained on the causes of action to which a demurrer has been sustained withoutleave to amend, and a notice of appeal is then filed. A judgment of dismissal entered after ademurrer is sustained without leave to amend is an appealable final judgment. Berri v SuperiorCourt (1955) 43 C2d 856, 860; Parenti v Lifeline Blood Bank (1975) 49 CA3d 331, 334,disapproved on other grounds in Wells v Marina City Props., Inc. (1981) 29 C3d 781, 789.The trial court cannot dismiss an action under CCP 581(f)(1) without a partys request, but aformal or noticed motion is not required; the party against whom judgment is entered hasalready had the opportunity to be heard in the hearing on the demurrer. See Oppenheimer vDeutchman (1955) 132 CA2d Supp 875, 879. Entry of a judgment of dismissal follows an ordersustaining a demurrer without leave to amend as a matter of course. Parenti v Lifeline BloodBank, supra. The trial courts refusal to enter a judgment of dismissal after sustaining ademurrer without leave to amend may be reviewed by writ of mandate. Berri v Superior Court,supra.A judgment of dismissal should not be entered after a demurrer is sustained on the ground thatanother action is pending, but an interlocutory judgment may issue abating the present actionuntil final determination of the pending action. See 23.32.The question of whether the trial court abused its discretion in sustaining a demurrer withoutleave to amend can be raised on appeal even if the plaintiff did not request leave to amend.CCP 472c. On appeal, the plaintiff-appellant has the burden of showing abuse of discretion.OKeefe v Atascadero County Sanitation Dist. (1971) 21 CA3d 719, 731. But the appellatecourt, like the trial court, must construe the pleadings liberally with a view to substantial justicebetween the parties. CCP 452.An order sustaining a demurrer without leave to amend to fewer than all causes of action in acomplaint or a cross-complaint is open on appeal from the final judgment in the action when anamended pleading is filed after the courts order. CCP 472c.If an order sustaining a demurrer without leave to amend is reversed or remanded, anyamended complaint must be filed within 30 days after the clerk of the reviewing court mailsnotice of issuance of the remittitur. CCP 472b. The 30-day time limit of CCP 472b appliesonly to an amended complaint filed after an appellate remittitur directs a trial court to sustain ademurrer with leave to amend; it does not apply when the reviewing court determines that thepleading allegations of the complaint challenged by demurrer were sufficient and did notrequire amendment. Dye v Caterpillar, Inc. (2011) 195 CA4th 1366, 1374.C. Demurrer to Answer23.70 1. If Demurrer OverruledIf reconsideration of a decision or an order overruling a demurrer to an answer is not requested

or not granted, the action must proceed as if the demurrer to the answer had not been filed;facts alleged in the answer will be considered as denied. CCP 472a(b).A plaintiff cannot obtain appellate review of an order overruling a demurrer to an answer.However, review may be obtained through writ of mandate proceedings if there is a significantlegal issue. See Babb v Superior Court (1971) 3 C3d 841, 851. See discussion in 23.63.23.71 2. If Demurrer SustainedWhen a court sustains a demurrer to an answer, it may grant the defendant leave to amend. CCP472a(c). Courts are usually liberal in granting leave to amend because appellate courtsfrequently consider denial of leave to be an abuse of discretion. See PG&E v Minnette (1949)92 CA2d 401, 405. See generally 5 Witkin, California Procedure, Pleading 1183 (5th ed2008); see 23.55. If the defendant amends the answer, the amendment constitutes a waiver ofany error that may have occurred in sustaining the demurrer. Hartke v Abbott (1931) 119 CA439, 440.An order sustaining a demurrer to an answer is not appealable. If the answer contains denials ofissuable facts or nondemurrable defenses, the action must proceed to judgment before thedefendant can obtain appellate review of the order. See Warren v Harootunian (1961) 189CA2d 546, 548 (dismissal improper when defendant declined to amend after general demurrersustained with leave to amend; even if general demurrer good to special defenses, denial of allmaterial allegations of complaint created issues of fact for trial). An order sustaining a demurrerwithout leave to amend to an affirmative defense when the demurrer to the entire answer isoverruled is open on appeal from the final judgment in the action when an amended pleading isfiled after the courts order. CCP 472c.If sustaining the demurrer leaves no issues to be decided, and if leave to amend the answer isnot granted or the defendant chooses not to amend, the plaintiff or cross-complainant maymove for entry of judgment by default under CCP 585587. CCP 586(a)(5); Cal Rules of Ct3.1320(h). On default generally, see chap 38. Thus, it appears that the defendant may obtainappellate review of the sustaining of a demurrer to an answer by not amending, allowing theplaintiff to take judgment by default and then appealing from that judgment. See discussion,including risks that may be involved in choosing this course, in 23.62.X. DIAGNOSTIC QUESTIONS23.72 A. Checklist: Defendants Diagnostic QuestionsAnswers to the following questions may assist defense counsel in evaluating whether ademurrer is appropriate in a particular case:__ 1. Do any of the following grounds to demur appear from an examination of the face of thecomplaint or cross-complaint or from matters that may be judicially noticed (see CCP430.10, 430.30(a))?__ a. The court has no jurisdiction over the alleged cause of action.__ b. The person who filed the pleading lacks legal capacity to sue.__ c. Another action is pending between the same parties on the same cause of action.__ d. There is a defect (nonjoinder) or misjoinder of parties.

__ e. The pleading does not state facts sufficient to constitute a cause of action.__ f. The action is barred by statute of limitations.__ g. The action is barred by prejudicial delay or laches.__ h. The action is barred because the plaintiff is not the real party in interest and thereforelacks standing to sue.__ i. The action is barred by res judicata.In actions on a contract:__ j. The plaintiffs claim is based on an illegal transaction.__ k. The plaintiffs claim is barred by the Statute of Frauds.__ l. The allegations fail to show either the elements or the existence of a contract.__ m. The allegations show an inadequacy of consideration.__ n. It cannot be ascertained from the pleading whether the contract is written, oral, orimplied by conduct.In tort actions:__ o. The allegations in a complaint for defamation disclose a privileged occasion but fail toallege malice. The allegations in a complaint for defamation or malicious prosecution disclosethe defense of absolute privilege.__ p. The pleading is uncertain, ambiguous, or unintelligible.__ q. In an action for damages for malpractice of an architect, professional engineer, or landsurveyor, no certificate of merit has been filed as required by CCP 411.35.__ 2. If the motion is not made, will your case be prejudiced later in the litigation by yourfailure to demur?__ a. Defects of substance are not waived.__ b. Lack of jurisdiction of the court is not waived if not objected to by demurrer or answer.__ c. Failure to state facts sufficient to constitute a cause of action or a defense is not waivedby failure to demur or to prosecute a demurrer.__ d. Defects of form appearing on the face of the pleading must be raised by demurrer or theyare waived.__ 3. If the motion is granted, will it materially affect the outcome of the litigation?__ 4. Will it result in the dismissal of the offending pleading, cause of action, or defense?__ 5. Will it result in narrowing the issues on which the opposing party may proceed?__ 6. Will it produce a useful clarification of the pleading, making it easier to respond to it, andperhaps suggesting additional defenses?__ 7. Will it encourage a favorable settlement by the opposing party?__ 8. Are there reasons not to demur?

__ 9. If asked, would the opposing party voluntarily amend the pleading to provide thenecessary clarification?__ 10. Will the opposing party be able to correct the defect by amending the defectivepleading?__ 11. Will the effort and expense of the motion outweigh any potential benefits?__ 12. Can your objections or challenge to the validity of the pleading be done moreexpeditiously by answer or by another procedure?__ 13. Will your demurrer merely force the opposing counsel to research and analyze the basesof the action, permitting him to cure defects and focus energy on the tenable aspects of theaction?__ 14. Will another procedure better accomplish the objectives?__ a. Raise the objection in the answer.__ b. Move to strike.__ c. Move to strike under the anti-SLAPP statute (CCP 425.16).__ d. Move for judgment on the pleadings.__ e. Move for summary judgment.__ f. Move to dismiss.__ g. Use discovery to clarify any uncertainty in the pleadings.__ h. Object to evidence at trial.On grounds for demurring to complaint, see 23.23. On demurrers in the context of civil libelor slander actions while criminal charges for child abuse are pending, see CC 48.7(c)(d). Ondemurrers to a peremptory writ or the application for a writ of review, see Cal Rules of Ct8.487(b). See also California Civil Writ Practice 8.40-8.56 (4th ed Cal CEB).23.73 B. Checklist: Plaintiffs Diagnostic QuestionsAnswers to the following questions may assist the plaintiffs counsel in evaluating whether ademurrer is appropriate in a particular case:__ 1. Do any of the following grounds to demur appear from an examination of the face of theanswer, or from matter that may be judicially noticed (see CCP 430.20, 430.30(a), 430.50)?__ a. The answer lacks facts sufficient to constitute a defense.__ b. The answer is uncertain (uncertain includes ambiguous and unintelligible).__ c. If a contract is pleaded in the answer, it cannot be ascertained from the face of the answerwhether the contract is oral or written.__ 2. Are there other reasons to demur?__ 3. Will the issue be waived if you do not demur? See CCP 430.80.

__ 4. Will the defendant (or cross-defendant) be unable to allege facts sufficient to constitutean affirmative defense in an amended answer, thereby limiting the scope of discovery?__ 5. If a contract is pleaded in the answer and if defendant amends to show that the contractwas oral, should a general demurrer raising the statute of frauds may then be considered?__ 6. Are there reasons not to demur?__ 7. Would a demurrer delay the lawsuit?__ 8. Would any possible benefit be outweighed by the expense of raising a demurrer becausethe defendant would be able to cure the defect by amending the answer?__ 9. Are any of the following better alternatives than a demurrer?__ a. Move to strike.__ b. Move to strike under the anti-SLAPP statute (CCP 425.16).__ c. Move for judgment on the pleadings.__ d. Move for summary judgment.__ e. Use discovery to clarify uncertainty in the answer.__ f. Object to evidence at trial.On grounds for demurring to an answer, see 23.44. For discussion of demurrers to a crosscomplaint, see 23.40.23.74 XI. CHECKLIST: PROCEDURE FOR DEMURRER TO COMPLAINTPrehearing ProceduresMoving Party__ Decide whether to answer or move to strike at same time, instead of, or in addition todemurrer (see 23.323.15, 23.72)__ Ascertain date demurrer must be filed (CCP 430.40; see 23.16)__ Prepare moving papers__ Notice of motion (see 23.39)__ Demurrer (each ground stated separately) (Cal Rules of Ct 3.1320(a); CCP 430.10,430.60; see 23.20, 23.2323.37)__ Supporting memorandum (see 23.38)__ Proof of service (see 12.82, 18.4218.44)__ Matters to be judicially noticed (see 23.22)__ Statement in writing of relevant part of court file (Cal Rules of Ct 3.1306(c))__ Copy for court and each party (see 23.75)__ Serve and file moving papers

__ 30 days after service of complaint or cross-complaint, or within time to file a responsive

pleading under an extension granted by the court or by stipulation of the parties (CCP430.40(a)) (see 23.16); or__ 10 days after service of answer, if demurring to answer (CCP 430.40(b)) (see 23.48); and__ At least 16 court days before hearing date (unless extended because of service by methodother than personal delivery) (CCP 1005) (see 23.39)Opposing Party__ Decide whether to amend pleading and file it before hearing on demurrer, or whether tooppose demurrer (see 23.5023.51)__ Prepare opposing papers (see 23.51)__ Memorandum in opposition__ Matters to be judicially noticed__ Serve and file opposing papers__ At least 9 court days before hearing (CCP 1005) (see 23.51)Moving Party__ Prepare reply to opposition papers (see 23.52)__ Service at least 5 court days before hearing (CCP 1005) (see 23.52)Hearing on Demurrer (see 23.53)__ If no appearance by one party, court may still decide on merits or continue hearing for goodcause (Cal Rules of Ct 3.1320(f))__ Failure to appear in support of special demurrer may be construed by court as admissionthat demurrer lacks merit and as a waiver of all grounds (Cal Rules of Ct 3.1320(f))__ If neither party appears, demurrer may be disposed of on its merits, dropped from calendar,or continued (Cal Rules of Ct 3.1320(f))See CCP 1167.3, 1170 on unlawful detainer and forcible entry cases.Posthearing ProceduresMoving Party If Demurrer Overruled__ Proceed with suit on merits, and appeal after adverse judgment (see 23.62)__ If new facts exist, file motion for reconsideration (see 23.60)__ Answer pleading within time specified in order overruling demurrer, or within 10 days iftime not specified (Cal Rules of Ct 3.1320(g)) (see 23.61)__ Allow default judgment to be entered, and appeal from that judgment (risky; see Warning in23.62)__ If no jurisdiction of subject matter was raised by demurrer and overruled, seek writ ofprohibition (see 23.63)

Opposing Party If Demurrer Is Sustained With Leave to Amend

__ File amended pleading or amendment to pleading within 10 days or time provided by thecourt (Cal Rules of Ct 3.1320(g)) (see 23.64) or__ Decline to amend pleading, allow entry of order of dismissal, and appeal from thatjudgment (see 23.6423.65, 23.67) (risky; see Warning in 23.62)Moving Party If Demurrer Is Sustained With Leave to Amend__ If new facts exist, bring motion for reconsideration (see 23.60)__ Move to dismiss if pleading not amended within time provided (Cal Rules of Ct 3.1320(i))(see 23.64)Opposing Party If Demurrer Is Sustained Without Leave to Amend__ If sustained without leave to amend to less than all causes of action, seek writ of mandate(see 23.68) or__ Voluntarily dismiss remaining viable causes of action, obtain judgment on dismissal ofdefective causes of action, and file a notice of appeal (see 23.69)__ Request reconsideration of order if new facts exist (see 23.60)__ Request court clerk to enter dismissal of action (without prejudice), and appeal thisjudgment (see 23.69)Moving Party If Demurrer Is Sustained Without Leave to Amend__ Request court clerk to enter dismissal of action (see 23.64)

XII. FORMS.....Note: The format of attorney-drafted court papers is governed by Cal Rules ofCt 2.1002.119. For example, pleading paper (with consecutive line numbers at the leftmargin of each page) must be used. On the many specific details required, see chap 11 and thesample form in 11.35. On when preprinted Judicial Council forms must or may be filed withthe court, see Cal Rules of Ct 1.301.44, 2.1322.134 and the discussion in 11.27.Copies: Orig'l (file w/ct clerk); __copies for service (one for each other party); _ office copies.23.75 A. Form: Notice of Hearing on Demurrer to Complaint__[Name of attorney; State Bar number]____[Address]____[Telephone number]____[Fax number (optional)]____[E-mail address (optional)]__Attorney for Defendant, __[name]__Superior Court, County of ________[Limited Civil Case]____[Name(s)]__,

No. ______

Plaintiff(s)

vs

NOTICE OF HEARING ON__[NAME]__S DEMURRER TO__[NAME]__S COMPLAINT

__[Name(s)]__,

Hearing: __[date; time]__

PLEASE TAKE NOTICE that the demurrer filed with this notice has been set for hearing on__[date]__ at __[time]__ or as soon thereafter as the matter may be heard, in __[department]__of the __[court]__ located at __[full address]__.

Date: ______

__[Signature]____[Typed name]__Attorney for __[name]__

Comment: See 23.48 on setting the date for hearing in accordance with Cal Rules of Ct3.1320(c) and CCP 1005.23.76 B. Form: Demurrer to Complaint__[Name of attorney; State Bar number]____[Address]____[Telephone number]____[Fax number (optional)]____[E-mail address (optional)]__Attorney for Defendant, __[name]__Superior Court, County of ________[Limited Civil Case]____[Name(s)]__,

Hearing: __[date; time]__

demanded __[exceeds/does not exceed]__

$10,000]__Defendant, __[name]__, demurs to each of the causes of action in the complaint of __[name]__on the following grounds:__[State each ground for objection separately in numbered paragraph]__.Date: ______

__[Signature]____[Typed name]__Attorney for __[name]__

Comment: California Rules of Court 3.1320(e) requires that the name of the party filing thedem'r and the name of the party whose pleading is the subject of the dem'r appear immediatelybelow the case number. Some local court rules may require an attys certificate of merits. If so,the following may be placed below the statement of grounds and above the date and attyssignature: The undersigned certifies that this dem'r is filed in good faith and not for thepurpose of delay. On MIS of dem'r, see 23.38. On format of court papers generally, see chap11. For discussion of demurrer to complaint, see 23.1923.39.23.77 C. Form: Demurrer to Cross-Complaint__[Name of attorney; State Bar number]____[Address]____[Telephone number]____[Fax number (optional)]____[E-mail address (optional)]__Attorney for Plaintiff/Cross-Defendant, _[name]__Superior Court, County of ________[Limited Civil Case]____[Name(s)]__,

Hearing: __[date; time]__

__[In limited civil case, add: Amount

__[Plaintiff/Cross-defendant]__, __[name]__, demurs to each of the causes of action in the

cross-complaint of __[name]__ on the following grounds: __[State each ground for objectionin numbered paragraph]__.Date: ______

__[Signature]____[Typed name]__Attorney for __[name]__

Comment: The demurrer must specifically identify in the caption the demurring party and thecross-complaint being opposed. See Cal Rules of Ct 3.1320(e). A notice of hearing and asupporting memorandum must accompany a demurrer. See 23.38. The grounds for objectingto a cross-complaint are the same as for objecting to a complaint. For discussion, see 23.2323.25. The forms in those sections may be used in a demurrer to a cross-complaint bysubstituting cross-complainant for plaintiff, cross-defendant for defendant, crosscomplaint for complaint, and answer to cross-complaint for answer.23.78 D. Form: Demurrer to Answer__[Name of attorney; State Bar number]____[Address]____[Telephone number]____[Fax number (optional)]__

__[E-mail address (optional)]__

Attorney for Plaintiff, __[name]__Superior Court, County of ________[Limited Civil Case]____[Name(s)]__,

Hearing: __[date; time]__

PLEASE TAKE NOTICE that on __[date]__, the Court __[sustained/overruled]__ the

demurrer of __[e.g., defendant]__, __[name]__, to __[e.g., the complaint, the first and thirdcauses of action in the complaint]__ and gave __[e.g., plaintiff]__, __[name]__, ___ days fromthe date of service of this notice to __[amend/answer]__ that complaint.[Add if demurrer is sustained]The Court sustained the demurrer __[on the following grounds and terms/on the grounds andterms shown in the attached copy of the Courts __[decision/order]__]__.[Continue]